Strict Liability

Strict Liability for Lending Your Car to a Driver with a Suspended License?

So the state of Washington seemed to argue, and a trial court agreed; but the Washington Court of Appeals says no.

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From State v. Elwell, decided earlier this month by the Washington Court of Appeals (Justice Tracy Staab, joined by Justices George Fearing and Laurel Siddoway):

This is a statutory construction case. Melinda Elwell was convicted of allowing an unauthorized person to drive her vehicle under RCW 46.16A.520. The statute provides that "It is unlawful for any person in whose name a vehicle is registered knowingly to permit another person to drive the vehicle when the other person is not authorized to do so under the laws of this state."

At trial, the district court judge held that the State need only prove that Ms. Elwell knowingly permitted another to drive but did not need to prove that she knew the person was unauthorized to drive. On direct appeal, the superior court reversed, holding that the adverb "knowingly" applies to the entire phrase and requires the State to prove that Ms. Elwell knew the person driving her vehicle was not authorized to drive. The State was granted discretionary review and asked this court to reverse the superior court. As a matter of first impression, we agree with the superior court and read the statute to require a mens rea component to each element of the crime….

In this case, when knowingly modifies how the subject performed the entire action, it necessarily includes the last part of the phrase "when the other person is not authorized to do so." Thus, a plain reading of the statute requires the State to prove a defendant knew the driver was not authorized to drive.

In addition to traditional definitions and grammatical rules, the phrase "knowingly permit" has also developed a common law definition. While somewhat unartful, the term is commonly used in statutory language. Although there is no case law interpreting this particular statute, there is significant case law interpreting this phrase or similar phrases. These cases overwhelming hold that the phrase "knowingly permit" requires proof that the subject knew of the illegal activity, not just the circumstances that could lead to illegal activity….

In this case, the State argues that the statute is ambiguous and legislative history supports its restrictive reading of the statute. In 1987, the Washington State Legislature re-codified and amended a variety of statutes relating to driving without a license. Before 1987, the wording of the statute that was eventually codified as RCW 46.16A.520 read "[i]t is unlawful for any person in whose name a vehicle is registered knowingly to allow another person to drive the vehicle knowing that the other person is not authorized to do so under the laws of this state." (Emphasis added) The statute was modified to change "allow" to "permit," and change "knowing" to the conjunctive verb "when." The State argues that by removing the second "knowing" from the statute, the legislature signaled its intent to alter the mens rea element.

While the State's position is possible, the amendment does not "clearly establish" this legislative intent sufficient to overcome the rule of lenity. "If a penal statute is ambiguous and thus subject to statutory construction, it will be 'strictly construed' in favor of the defendant." …

Finally, in construing the necessary mens rea element for this statute, we are also guided by constitutional concerns. When considering the mens rea element of a crime, we should avoid a statutory reading that would criminalize a broad range of innocent conduct. The State's interpretation of the statute would criminalize a substantial amount of innocent conduct. Not only would this include lending vehicles to friends and family members, but would naturally encompass rental car companies and businesses that employ drivers. Anyone who lends a vehicle to someone who—it turns out—is unauthorized to drive in Washington would be subject to criminal charges.

{At oral argument, the State suggested that persons lending a vehicle could protect themselves by going to the Department of Licensing website and inputting the driver's license number and birthdate to verify the driver's licensing status. This solution has numerous problems. It assumes access to the internet at the time of lending; it assumes a lender must check each time (or each day?) that they lend a vehicle; and it assumes that the DOL website would provide the driving status of a driver with an out-of-state license.}

Sounds right to me.

NEXT: A New Analysis of the Implications of Occupational Licensing

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  1. At trial, the district court judge held that the State need only prove that Ms. Elwell knowingly permitted another to drive but did not need to prove that she knew the person was unauthorized to drive.

    This strikes me as a bizarre interpretation.

    If the word “permit” implies consent then it is impossible to unknowingly permit someone to do something.

    If I leave my car keys lying around, and someone takes them and uses my car, have I “permitted” that use?

    1. Or a parking valet?

    2. If you believe what you read on the internet, police will give you the car owner two options. One, you deliberately loaned the car out and you are criminally liable. Two, the car was stolen from you and you will press charges against your friend or relative to prove your innocence.

      1. I know this may vary by jurisdiction, but as I understand it, the officer arresting someone for which a license will be suspended is supposed to confiscate the license and issue a paper receipt for it. So my argument would be that the officer was negligent in not maintaining possession of said friend’s driver’s license and as I am not a police officer, I have no way of knowing that the apparently valid license actually wasn’t.

        Checking the validity of your own license every couple of years is prudent — mine was once deleted because I was “deceased” — I am not making this up — but at $4 per check, that’s $1,460 a year if done daily and clearly an unreasonable burden.

        OTOH, I know of a case about 30 years ago where a teenaged son without valid license took the parent’s sports car and a town cop who apparently knew both the the son, his license status and the vehicle (a “classic” “muscle car”) attempted to stop him.

        This quickly became a high-speed pursuit with the vehicle reported (by the officer) to have been going 100+ MPH through downtown at which the officer was ordered to discontinue pursuit. He allegedly did, although there is evidence suggesting otherwise.

        About a quarter mile further north, where the road narrows and curves to the right to go around the town common, the vehicle didn’t go far enough to the right and instead collided head-on with a limo. Killed him, limo driver and a member of a wedding party, seriously injured everyone else in the limo.

        I don’t know how that came out legally — the son was dead so they couldn’t charge him with anything — but memory was that the town was looking at some serious financial liability because the town’s officer had been chasing the vehicle. It was a tragic accident, memory is that either the bride or groom was killed.

        I’ve always wondered why we hold vehicle owners liable for what vehicle operators do.

        1. The other question is whom would they criminally charge had the vehicle been owned by a corporation?

          I’m thinking of not just a driver with a revoked license but one also drunk out of his mind — i.e. the infamous 1999 crash involving a Hi-Way Safety vehicle that killed a 13-year-old girl and severely injured another one and the girl’s mother. See: https://www.nbcboston.com/news/local/pembroke-manslaughter-drunken-driving-crash-hearing/2055162/

          How can you ethically hold a natural person liable for something that you can’t hold a corporate person liable for?

          1. A corporation can be criminally charged. There was a corporate conviction for motor vehicle homicide a decade or so ago. Truck driver backed into an officer working a detail. Driver was acquitted, employer was convicted. $2,000 fine, more or less.

        2. I know this may vary by jurisdiction, but as I understand it, the officer arresting someone for which a license will be suspended is supposed to confiscate the license and issue a paper receipt for it. So my argument would be that the officer was negligent in not maintaining possession of said friend’s driver’s license and as I am not a police officer, I have no way of knowing that the apparently valid license actually wasn’t.

          Is this supposed to have some connection to the case being discussed in this post?

          1. From said post:
            “{At oral argument, the State suggested that persons lending a vehicle could protect themselves by going to the Department of Licensing website and inputting the driver’s license number and birthdate to verify the driver’s licensing status. This solution has numerous problems. It assumes access to the internet at the time of lending; it assumes a lender must check each time (or each day?) that they lend a vehicle; and it assumes that the DOL website would provide the driving status of a driver with an out-of-state license.}”

  2. More use of the lawless Latin phrase, mens rea, lawless because it promotes the Catholic religion. More mind reading from the lawyer profession. More reliance on human memory that is worthless after an hour. More opportunity to implant false memories during interrogations. More outcome bias. More making ordinary citizens into police.

    I tried to get my own driving record, got this:
    Individual Driver Records
    Login
    Please enter all of the required information below to order your driver record
    *Driver’s License Number:
    *Date of Birth (mm/dd/yyyy):
    *Last 4 digits of Social Security No. (SSN):

    More lawyer quackery. Say I am a very dangerous driver, drunk, demented, untreated ADHD. Suspending my license will not keep others safe, only incapacitating me will. The lawyer only addresses the document, not the real danger, the person.

    1. Someone with untreated ADHD is not inherently dangerous and presuming otherwise is every bit as obtuse as the racist presumptions made about Black men a century ago.

        1. Did you actually READ the article???

          “Although the study found an association between having ADHD and greater risk of serious car crashes, it did not establish a cause-and-effect relationship.
          ….
          “With ADHD, there tend to be two groups: a group that is distracted and impulsive, and a group that drives fine.
          ….
          People with ADHD also should to take extra precautions that will help them keep their mind on the road, Hughes said.

          “In addition to medication, this can mean limiting distractions like texting or cell phones, fewer passengers, breaking up monotonous drives with frequent breaks and being more vigilant about driving defensively,” she said.”

          1. There are also issues with the study’s methodology that I’m not even going to try to explain because WebMD also missed them.

            1. Feel free to briefly review the flaws. I always learn.

  3. This is a state that Knowingly allows far left criminals to commit mayhem and property destruction. But they go all in for justice on a poor woman lending her car.

    1. I was thinking the same thing — not to mention the possible privacy invasions if you have people routinely checking other peoples drivers license status.

      Wasn’t there some actress killed by a stalker a few decades back because he got her drivers license info? And wasn’t there some Federal law that restricted that?

      1. An actress was stalked and murdered by someone who had looked at her driver’s license because she asked to borrow his car?

      2. Driver’s Privacy Protection Act

        Cops are not supposed to look up the info of the hottie who drove past so they can ask her out. Access by the public to driving records is supposed to be restricted to a list of legitimate reasons.

        When your information is illegally accessed you have the mostly illusory right to sue for damages. You very rarely have any way to know that somebody is snooping in your records. In one of the Midwest circuits the statute of limitations was found to start at the time of the violation, not the time of discovery. There have been occasional successful suits.

        As a technical matter, it would be easy to mail you a notice when your records were pulled and let you decide whether you wanted to make trouble.

        1. Wasn’t this one of the (many) things that Mass State Police Trooper Leigha Genduso was fired for?

  4. Cars are hooked up to the internet. I can see an interlock with facial recognition that sees a database of suspended licenses and locks the car until the person gets out of the driver’s seat or if the camera is taped over.

  5. I’m a linguist and not a lawyer, so just on the basis of natural language, my impression is that if we put a comma into, “It is unlawful for any person in whose name a vehicle is registered knowingly to permit another person to drive the vehicle, when the other person is not authorized to do so under the laws of this state,” then possibly we could get the interpretation the state argues for, because we’ve separated the when-condition from the main clause.

    But even then, in line with what bernard11 writes, “knowingly permit” would be a strange turn of phrase, if it only distinguishes between accidentally allowing someone else to take the key, vs. “knowingly” handing them the key. If that were the intent, then a more appropriate phrase would be “intentionally permit.” But the scope of “knowingly” should naturally include some aspect which is about “knowledge.” And the only aspect of the puzzle here which is about “knowledge” rather than “intent” is the other person’s license status.

    1. Ambiguous language fails to give notice, and violates that Fifth Amendment procedural due process right.

      Linguist should review and approve all laws and regulations for clarity. Lack of approval by a linguist should void the rule for the above reason. Not being sarcastic.

    2. “…vehicle, when …”

      With the comma, the owner would not be required to know

      Without the comma, the owner would have to knowingly permit the person to drive the vehicle and would have to knowingly know the other person could not legally drive the car

  6. When I was in grad school there was a first year law student whose name was Lenard Thulsman. He had lots of fun for the semester they had to study the rule of lenity. He even printed some t-shirts….

  7. Why did every government agent in this case pursue it as if driving a car were some great matter that must be carefully controlled and scrupulously permitted? And why do voters keep going with that attitude?

  8. I feel the real issue here is being ignored.

    Setting aside the question of statutory interpretation, shouldn’t strict liability be highly disfavored as a general matter? Limited to just circumstances that are widely understood to be unreasonably hazardous? “Ignorance of the law is no defense” was originally predicated on the notion that the laws in question were prohibiting malum in se offenses, where anybody with a functioning conscience would know the act was wrong without having to know it was illegal.

    I question if strict liability, even if clearly intended by the legislature, makes any sense for malum prohibitum offenses concerning common and not hugely hazardous activities.

    Of course, it seems that the legal system has been gradually moving away from the idea that the law has any actual moral basis that could constrain it, in favor of treating the law as nothing more than a raw exercise of morally unconstrained power. From that perspective this distinction may seem incomprehensible, and the only question WOULD be legislative intent.

  9. This is not a surprising result. MPC canons of interpretation suggest exactly this result: once a mens rea is specified, it travels to every following actus unless a new mens rea is introduced. A court should presume the legislature knew that.

    That said, it does seem like either interpretation is plausible, and we can imagine that a legislature would want to hold a vehicle owner criminally responsible for the consequences of failing to check whether a person she permitted to drive her vehicle was legally allowed to do so. If you only penalize such behavior when the owner knew the driver was not allowed to drive, then you provide an incentive not to ask. E.g.,

    “Can I borrow your car?” “Sure, whatever.”

    V.

    “Can I borrow your car?” “Do you have a valid driver’s license?”

    Of course there are other incentives such as public-mindedness, concern for the return of the car, and civil liability, so I think the “knowingly” law works well enough.

    1. Strict liability would risk making the crime of loaning a car more serious than the crime of driving a car. In Massachusetts proof of at least constructive knowledge of suspension is required for a criminal conviction for driving under suspension. (In addition to actual knowledge, proof of receipt of notice of suspension by an agent or household member is sufficient, as is a statement by a judge that suspension is required by law.)

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